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Harden v. Hillman

United States District Court, W.D. Kentucky, Owensboro Division

May 22, 2019

JOHN K. HARDEN PLAINTIFF
v.
OFFICER KEITH HILLMAN DEFENDANT No. 3

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley Jr., District Judge United States District Court

         This matter is before the Court on Defendant's Motion in Limine. [DN 120]. Fully briefed, this matter is ripe for decision. For the following reasons, the Motion is DENIED.

         I. Background

         In the early morning hours of August 2, 2014, John Harden entered a Thorntons, Inc. gas station and attempted to buy beer but was refused service by the cashier, as he appeared intoxicated. Defendant Keith Hillman was working inside the store providing security, outside of his regular hours as a police officer. Mr. Hillman intervened in the situation and directed Mr. Harden to leave the store. Mr. Harden did leave but returned a short time thereafter. Mr. Hillman verbally directed Mr. Harden to leave the premises, but Mr. Harden refused. Mr. Hillman then physically removed Mr. Harden from the store and placed him under arrest.

         Mr. Harden filed the Complaint in this case on July 8, 2015. After several rounds of summary judgment motions, the remaining claims are against Mr. Hillman for excessive force in violation of 42 U.S.C. § 1983 and assault and battery.

         Magistrate Judge Lindsay issued a Scheduling Order [DN 23] and the parties filed initial disclosures in accordance with Rule 26. [DN 25-26]. In Mr. Harden's initial disclosures, he identified several groups of medical personnel who may possess relevant information-the hospital personnel at University of Louisville Hospital, medical personnel at Veterans Hospital, individuals employed by Louisville EMS, and Dr. Seline Stephen. [DN 25]. Mr. Harden noted below the designations that the listed individuals would testify about his condition and the treatment provided to him following the alleged assault by Mr. Hillman. [Id. at 2]. Mr. Harden did not file any designation of expert witnesses and accompanying reports or disclosures in the timeframe provided by the Court's Scheduling Order. The case progressed through pre-trial discovery and motions and is now less than two months out from the scheduled trial.

         Both parties filed their final witness and exhibit lists, pretrial memoranda, and proposed voir dire and jury instructions. Mr. Hillman also filed the instant Motion in Limine. [DN 120]. He asks the Court to exclude two categories of evidence. First, Mr. Hillman asks the Court to bar testimony or inquiry into his tax reporting during his employment with Thornton because he claims that such evidence is not relevant to the triable issues. [Id. at 1-3]. Second, Mr. Hillman asks the Court to bar Mr. Harden from putting forth expert testimony from any medical personnel because Mr. Harden failed to file the requisite expert designations and disclosures. [Id. at 3]. Mr. Harden responded to the Motion in Limine arguing he did designate the medical personnel as testifying witnesses, though not as experts, and that inquiry about his tax reporting is relevant character evidence under the Federal Rules of Evidence. [DN 121].

         II. Discussion

         As mentioned, Mr. Hillman moves to exclude two categories of evidence. The Court addresses each of Mr. Hillman's requests separately.

         A. Motion to Exclude Evidence of Failure to Report Income

         Mr. Hillman first moves the Court to exclude all issues surrounding the employment relationship between himself and Thorntons. [DN 120]. Specifically though, Mr. Hillman seeks the Court's aid in preventing the jury from hearing about any failure on his behalf to report his income accurately on tax documents. [Id. at 1-3]. Mr. Hillman argues that such evidence is not relevant, but that even if the Court finds that the evidence is relevant, its probative value is outweighed by unfair prejudice. [Id. at 2]. Mr. Harden responds that evidence of Mr. Hillman's failure to accurately report his income on tax documents is relevant if Mr. Harden testifies. [DN 121 at 2]. Mr. Harden explains that the untruthful reporting of income is relevant to his character for untruthfulness and, as such, is proper material for attacking his credibility on the witness stand. [Id.].

         At issue in trial will be whether Mr. Hillman used excessive force in effectuating the arrest of Mr. Harden and whether the force used amounts to assault and battery. Assuming Mr. Hillman takes the stand and testifies, he places his credibility in issue. On cross-examination of Mr. Hillman, Mr. Harden is permitted to inquire into specific instances of Mr. Hillman's conduct if those instances are probative of Mr. Hillman's character for truthfulness or untruthfulness. Fed.R.Evid. 608(b)(1). However, extrinsic evidence of particular instances of conduct, even if probative of truthfulness or untruthfulness, is inadmissible under the same rule.

         The question then is whether a failure to accurately report income on tax-related documents is conduct probative of untruthfulness. The Court believe that it is. As such, this evidence satisfies the low threshold for relevance. If Mr. Harden has a good-faith basis for believing that Mr. Hillman inaccurately reported his income on tax documents, such an inquiry on cross-examination of Mr. Hillman would be appropriate and permissible under the Federal Rules of Evidence. ...


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